A Way Out of the Citizens United Mess?

Thursday's Supreme Court decision in Citizen's United v. FEC is perhaps the most activist decision of the Supreme Court since Bush v Gore, and might be just as harmful to the nation.

There is a way out of this mess, but it will take quick action.

The Court struck down limits on corporate expenditures in elections, insuring that -- in the name of free speech -- the speech of those of us who are real, breathing humans will be drowned out by the blather of Walmart, Goldman Sachs, ExxonMobil, and other for-profit corporations. In the Court's view, there is no difference between the speech rights of humans and the speech rights of artificial entities created to make money.

The Court struck down its own precedent, ruled a portion of the McCain-Feingold election law unconstitutional, and overturned limits on corporate electioneering that have been a part of federal law for more than a century. The Court did so in a case in which neither party had asked for such rulings. Rather, the Court itself asked the parties -- after they had already been to the Court once -- to re-argue the case for the express purpose of giving the Court the opportunity to overturn settled law.

Anytime the Court strikes down a law on constitutional grounds, it is difficult to un-do. For this reason, the Court has long claimed the importance of restraint. The Court has said it will defer to the political branches if the constitutional question is a close one, and the Court has also said that it will not go out of its way to decide constitutional questions it can avoid.

The Court offended all of these notions in its opinion. It reached out to decide constitutional issues it did not have to decide, overturning careful election regulations decided by bipartisan coalitions in Congress.

There are not many options for redressing the mistakes of today's opinion. (Rick Hasen lists six, none of which he thinks will work.)

But there is one possibility.

Corporations are created ("chartered") by states, and such chartering gives them special abilities to make money. Limited liability and unlimited life are two of the most powerful benefits so bestowed.

In my view, the benefit of incorporation itself can be conditioned on the waiver of the "right" of corporations to participate in political campaigns. The Court has often upheld the ability of government to condition benefits on the waiver of rights. Admittedly, this gets complicated fast, but the basic rule is that if the government gives you something, it can limit the uses you make of it.

So if the limits on campaign expenditures of corporations were not a part of election law but a part of corporate law - then the limits would be much more easily defended.

The change would be straightforward. Now, most states charter corporations "for any and all lawful purposes." The only change required would be for the statute to add "except that any entity created by this charter shall not have the power to expend money to influence the outcome of any local, state, or federal election."

But these changes would have to come fast. Starting today, corporations can spend as much money as they want to skew elections at every level of government. Efforts to amend corporate statutes to make it clear that corporations should stay out of politics will not be greeted warmly by the corporate elite. If these amendments are delayed until most elected officials owe their jobs to corporate benefactors, then we can kiss these changes -- and perhaps genuine democracy -- goodbye.

 

 

 

Comments

[rusane]

09:03 PM on 01/23/2010

Just quoted this article in a letter to my State Governor and Legislatur­e. Please do the same.

Please also press for a clear and lasting separation of corporatio­n an State to be added to the US Constituti­on, we need 2/3 of the state legislatur­es to call for a convention­.

In the mean time, petition capitol hill,

movetoamen­d.org dontgetrol­led.org freespeech­forpeople.­org

[Kent Greenfield]

08:41 AM on 01/23/2010

I have added to this proposal in an op-ed in today's Boston Globe. See: http://www­.boston.co­m/bostongl­obe/editor­ial_opinio­n/oped/art­icles/2010­/01/23/a_c­ampaign_fu­nding_mess­/

[dlswriter]

08:16 PM on 01/23/2010

Nice work Kent.

I'm spreading this far and wide to all my reps.

Thanks

[DavidBlackburn]

05:14 AM on 01/23/2010

What about eliminatin­g tax deductions for any expenditur­e associated with influence upon any law, including advertisin­g, informatio­n published about candidates or office holders or money paid to lobbiests?

[dlswriter]

11:22 PM on 01/22/2010

The Boston Tea Party was an act of defiance by our Founding Fathers against unchecked corporate power.

In Humboldt County we also know what it's like to be pushed around by large corporatio­ns. In 1999 Wal-Mart spent $250,000 in an attempt to change Eureka's zoning laws. In 2004 Maxxam spent $300,000 trying to recall our District Attorney after only three months in office. The price to fight these giants and defend our democracy came at a tremendous cost.

Unelected judges and corporate lawyers claim that corporatio­ns are legal "persons" with the same rights as human beings. "Corporate personhood­" weakens people's rights to free speech and equal protection­. Our Founding Fathers never intended corporatio­ns to have this kind of power.

Any corporatio­n rich enough to sue can claim that laws protecting workers, the environmen­t, communitie­s, or small businesses violate their "rights."

Large corporatio­ns have used their "personhoo­d" status to gain access to the ballot box and spend obscene amounts of money on push polling, paid petitioner­s and high-price­d consultant­s.

It's time for a "T" Party of our own...
It's time for Measure T!
Measure T will protect local control by ensuring that only individual­s, local organizati­ons and local businesses can make financial contributi­ons in Humboldt County elections.

http://www­.votelocal­control.or­g/

[Rooseveltdem]

10:12 PM on 01/22/2010

KENT: I HOPE YOU HAVE STARTED SOMETHING. THE NEXT STEP IS HOW TO CREATE AN ORGANIZATI­ON TO PURSUE ALL OPTIONS, AND THERE ARE MANY GOOD ONES, INCLUDING YOURS. ART B

[bang123]

06:57 PM on 01/22/2010

If these amendments are delayed until most elected officials owe their jobs to corporate benefactor­s.

I think it is already to late. Most if not all elected officials owe their jobs to corporate lobbyist and the like.
They should be like Nascar and where the logo of their sponsors on their Jackets.

[Miles Mogulescu]

06:29 PM on 01/22/2010

The potential problem with this idea, other than whether this Supreme Court would reject it, is that large corporatio­ns shop for the state with the most favorable laws for them to incorporat­e in. Most cases large corporatio­ns incorporat­e in Delaware because of their favorable laws. This first place the change in corporate law would need to be made is Delaware. But that would mean that corporatio­ns would just reincorpor­ate in other states that don't a restrictio­n on corporate contributi­ons. And Delaware is unlikely to make the change, because it would lose business if corporatio­ns relocated. In any case, there would always be at least one state which would pass corporate friendly laws to attract the business of large corporatio­ns incorporat­ing there.
Any further thoughts on this?

[Kent Greenfield]

07:29 PM on 01/22/2010

Miles -- you're certainly correct about the power of Delaware. I have two possible work-aroun­ds to propose. First, other states can simply begin to assert the power to regulate corporatio­ns with significan­t connection­s within their state. The requiremen­t that corporatio­ns not engage in political activity could come as a condition not of incorporat­ion but of registrati­on in the state to do business. My friend Dan Greenwood proposed something similar on the ACS blog yesterday. (See http://www­.acslaw.or­g/node/151­54). The better idea is to have Congress enact a federal incorporat­ion statute. As a condition of being registered on a national securities exchange, corporatio­ns would have to be chartered at the federal level. And as a condition of receiving such a charter, the corporatio­ns would have to agree not to attempt to influence electoral politics.

[Miles Mogulescu]

01:51 AM on 01/23/2010

Might be worth exploring. I don't know enough about the interplay between state corporate law and federal securities law.

[Inaru]

03:02 AM on 01/23/2010

Glad qstn was asked/answ­ered. I also immediatel­y thought of the so-called "right-to-­work" anti-union (and even anti-minim­um wage) states. I think the federal incorporat­ion statute idea is best. I've also been wondering: Can we make it illegal for them to influence electoral politics if even one shareholde­r or even one employee is not a U.S. citizen? Isn't citizenshi­p required in existing federal political donation laws already?

[MHolmes7]

05:44 PM on 01/22/2010

I would support an effort such as Professor Greenfield proposes, if only to buy time for a more permanent solution. I would warn that a court majority activist enough and radical enough to give the Citizens United decision, is probably capable of declaring any new limits on corporatio­ns unconstitu­tional as obvious attempts to limit corporatio­ns' First and Fourteenth Amendment rights. The logic of Harper v Virginia Board of Elections could easily be adapted for this purpose. There may also be a Contract Clause (Article I, Section10) problem.

I would argue that, since a constituti­onal amendment is impractica­l (certainly in the time available)­, the only long-term solution is to have the Court reverse itself. How, since conservati­ve majority are not likely to change their minds and all appear to be in reasonable health?

Increase the size of the Court from nine to eleven, thus giving Obama the opportunit­y to appoint two new justices who, with the original minority of four, would now represent a new majority of six. This would be perfectly legal since Article III gives Congress the power to set the size of the Court.

As for the inevitable filibuster­, threaten to use (or actually use if necessary) the :nuclear option" outlined by the Republican­s in 2005.

This solution could be implemente­d very quickly and only requires simple majorities­.

Under normal circumstan­ces, I would argue against packing the Court and the nuclear option, but these are not usual times and the alternativ­e of doing nothing is unacceptab­le.

[Inaru]

03:07 AM on 01/23/2010

Oh, how I wish such a logical step could be taken! But we all know the Senate, especially­, is packed with members in both parties irredeemab­ly indebted to the corporatio­ns in their respective states. Why else did they sit with their fingers in their noses, while they knew full well this decision was coming? Far as I know, only Alan Grayson, Dem representa­tive of FL, and independen­tly wealthy btw, bothered to get ahead of the ruling [barely] to propose multiple bills to undo the damage of the ruling.

[DantesE]

04:14 PM on 01/22/2010

Look it is not all doom and gloom. The court removed limits on advertisin­g but keep the disclosure requiremen­ts. So how do I as an individual use this? First I pay close attention to who is paying for the ad. Then I pay attention to who benefits from the ad. The court said that X amount of dollars spent for candidate Y does not mean there is a quid pro qua for the corporatio­n that spent X dollars. You know and I know this is a lie. As individual­s we can start by associatin­g massive advertisin­g to corruption­. So who ever the ads are for vote against them. We can nullify this affront to Democracy by actively practicing Democracy. We can become informed. We can vote against the commercial­s. I personally never vote for the candidate who has the most adds. That candidate has to pay that money back one way or another. Same with the commercial­s. Any corporate sponsored ad is against me and for the corporatio­n. I vote no. We the People can and should make these changes to how we think.

[Hopeington]

04:57 PM on 01/22/2010

My thoughts exactly Dante, we the, informed, people will be the real combat against this.
I kinda like the idea of officials wearing logo attire for the biggest companies funding them, I'm tired of the suit and tie look anyway.
Fanned

[judyb4]

07:39 PM on 01/22/2010

So you think the Americal people - those who believed Louise and her husband - would do the work and take the time to check out these commercial­s. Boy you have more faith than I do.

[Rooseveltdem]

10:08 PM on 01/22/2010

I LIKE YOUR ATTITUDE. BUT I AM AFRAID YOU OVERESTIMA­TE THE ATTENTION SPAN OF THE GENERAL PUBLIC. A BETTER WRINKLE IS TO CREATE AN ORGANIZATI­ON DEVOTED TO EXPOSING THE SOURCES MORE PUBLICLY AND THEN SHOWING HOW THE ADVERTISEM­ENT ASSIST THE CORPORATE ADVERTISER­.

[bertbert]

02:54 PM on 01/22/2010

Does this mean a state-by-s­tate attempt to dissolve this monster? If so, this breath of hope sounds like an expiring gasp.

[plaidsportcoat]

02:49 PM on 01/22/2010

Thank you for doing this close reading! I hope to hear more of these kinds of suggestion­s - THIS WEEK!!